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Porter & Porter - 281 Or. App. 169, 381 P.3d 873 (2016)


In the context of a premarital agreement, mutual assent, or what historically was considered as the meeting of the minds requirement, may be expressed in words or inferred from the actions of the parties.


Plaintiff wife, Claudia Porter, testified that, in early December 2002, although the parties had not yet discussed marriage, but that her husband-to-be, Harry H. Porter III, had mentioned that he was going to have his attorney prepare a prenuptial agreement. At the time of the divorce, the parties had been married for 10 years and have four minor children, ages four to nine. Claudia testified that she had told Harry at the time that she had never heard of a prenuptial agreement. She testified that she did not read every word of the document because she did not understand most of it, especially the legal terminology, but that she did not remember asking husband to explain any of the terms. In addition, wife testified that she trusted husband and believed that the document was "rather insignificant," because only a notary (and not a lawyer) was present. Wife added that she did not understand that the agreement provided that, in the event of divorce, she would not be entitled to spousal support or to any portion of husband's property. Wife testified that, had she understood the agreement, she would not have signed it and would have consulted a lawyer. After a hearing, the trial court ruled that the agreement was unenforceable, both because it had not been entered into voluntarily and because it was unconscionable. Both parties appealed.


Was the prenuptial agreement enforceable?




The trial court correctly ruled that a premarital agreement was not enforceable under Or. Rev. Stat. § 108.725 because the parties had not discussed the terms of the agreement in advance, the wife had not seen a copy of the agreement before the husband asked her to sign it, the wife did not have a chance to negotiate the terms of the agreement, the wife did not have time to fully read or understand the agreement, and the husband, who had had experience with premarital agreements, had not recommended that the wife have an attorney review the agreement. On the wife's cross-appeal, the appellate court affirmed the trial court's division of property  without discussion.

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